On behalf of the defendant-appellant, the cause was
submitted on the briefs of William M. Onheiber, pro se.

Respondent

ATTORNEYS:

On behalf of the plaintiff-respondent, the cause was
submitted on the brief of William L. Gansner, assistant attorney general, and J.B. Van Hollen, attorney
general.

2009 WI App 180

COURT OF APPEALS

DECISION

DATED AND FILED

November 25, 2009

David
R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2009AP460-CR

Cir. Ct.
No.2006CF511

STATE OF WISCONSIN

IN COURT OF
APPEALS

State of Wisconsin,

Plaintiff-Respondent,

v.

William M. Onheiber,

Defendant-Appellant.

APPEAL
from an order of the circuit court for MarathonCounty:VINCENT
K. HOWARD, Judge.Reversed and
cause remanded with directions; arrest warrant/detainer quashed.

Before Hoover,
P.J., Peterson and Brunner, JJ.

¶1HOOVER, P.J. William
Onheiber, pro se, appeals an order denying his motion to dismiss a criminal
complaint for violations of the Interstate Agreement on Detainers.Onheiber argues the complaint should have
been dismissed with prejudice pursuant to Wis.
Stat. § 976.05 because he was not brought to trial within 180 days
of his request for final disposition of the pending charges.[1]We agree, reverse the order, and direct the
circuit court to dismiss the complaint with prejudice.We also quash the arrest warrant/detainer,
effective immediately.

BACKGROUND

¶2In September 2005, Onheiber began serving a five-year term of
confinement in federal custody following the revocation of his supervised
release.Onheiber’s supervision was
revoked because he violated his supervision conditions by selling large
quantities of marijuana to a confidential informant.Nine months later, on June 8, 2006, the
Marathon County District Attorney’s office filed a criminal complaint charging
Onheiber for the marijuana deliveries.The circuit court issued a nationwide arrest warrant the following
afternoon.

¶3Shortly thereafter, on June 14, 2006, Anna Anderson from the
Federal Prison Camp in Duluth, Minnesota, where Onheiber was incarcerated
contacted the Marathon County Sheriff’s Department.[2]Sharon Roloff from the sheriff’s department
confirmed that a criminal complaint and arrest warrant for Onheiber had been
issued.Following the phone call, Roloff
sent a fax transmittal of the arrest warrant and attached complaint.The fax cover page stated:“Copy of Onheiber warrant for your file.No detainer placed at this time.Please send ‘notify’ when appropriate.”

¶4Approximately two weeks later, Anderson delivered to the sheriff’s
department a form “Detainer Action Letter.”As shown below, the form contains five preprinted paragraphs with
check-mark boxes, each of which clearly indicates whether a detainer has been
lodged.However, Anderson modified the form, creating and
check-marking a new paragraph.Following
is a scanned copy of that document.

¶5Onheiber’s attorney[3]
averred that from June 2006 through November 2007 he attempted to resolve the
pending charges with the district attorney’s office, but was unsuccessful due
to the office’s workload and failure to communicate with him.In late November 2007, after Onheiber was
informed the prison would not send his documents,[4]
he mailed a “Written Notice of Place of Imprisonment and Request for Final
Disposition of Complaint Pursuant to[Wis. Stat. § 976.05].”The notice was filed with the circuit court
on November 27, 2007.On May 30,
2008, Onheiber moved to dismiss the complaint because he had not been brought
to trial within 180 days.

¶6Following a hearing, the circuit court denied Onheiber’s
motion in a written decision.The court
concluded the 180-day timeline was never triggered because “a ‘detainer’ within
the meaning of Wis. Stat. § 976.05
was never lodged ....”Onheiber appeals
and, because he is due to be released from prison on December 25, 2009, we
granted his motion to expedite our determination of his appeal.[5]

DISCUSSION

¶7In Wisconsin,
the Interstate Agreement on Detainers is codified in Wis. Stat. § 976.05.Paragraph 976.05(3)(a) provides that when a prisoner is imprisoned in
one state[6]
and there is a pending charge against the prisoner in another state

on the basis of which a detainer has been lodged
against the prisoner, the prisoner shall be brought to trial within 180 days
after the prisoner has ... delivered to the prosecuting officer and the
appropriate court ... notice of the place of his or her imprisonment and his or
her request for a final disposition to be made of the ... complaint ....

¶8The dispute in this case centers on whether the nationwide
arrest warrant constituted a “detainer” under the Interstate Agreement on
Detainers.This presents a question of
law that we determine independently of the circuit court.SeeState v.
Eesley, 225 Wis. 2d
248, 254-55, 591 N.W.2d 846 (1999).Further, Wis. Stat. § 976.05
is a remedial statute that we construe liberally in favor of a prisoner. State v. Tarrant, 2009 WI App 121,
¶7, __ Wis. 2d
__, 772 N.W.2d 750; see also
§ 976.05(9) (interstate agreement on detainers “shall be liberally
construed so as to effectuate its purposes”).

¶9Although “detainer” is not defined by statute, the courts
have “defined a detainer as a ‘notification filed with the institution in which
a prisoner is serving a sentence, advising that he is wanted to face pending
criminal charges in another jurisdiction.’”Eesley, 225 Wis. 2d at
257-58 (quoting United States v.
Mauro, 436 U.S. 340, 359
(1978)) (internal quotes omitted).This
definition of a detainer is well-established in Wisconsin.SeeState v. Miller, 2003 WI App 74, ¶3 n.2,
261 Wis. 2d
866, 661 N.W.2d 466; State v. Nonahal, 2001 WI App 39, ¶5, 241 Wis. 2d
397, 626 N.W.2d 1.

¶10Onheiber argues, and we agree, a detainer existed after Roloff
verbally confirmed the existence of the criminal complaint and nationwide
arrest warrant and then faxed to the prison the warrant and complaint with a
request for notification prior to Onheiber’s release.Indeed, the subsequent detainer action letter
to the sheriff’s department acknowledged the prison was aware of the charges,
the arrest warrant, and the department’s request for notification prior to Onheiber’s
release, and indicated the prison’s “records have been noted.”Additionally, the notice and request for
disposition Onheiber provided to the circuit court and district attorney’s
office included a multi-page printout from the prison giving details of
Onheiber’s term of imprisonment.[7]The printout included a section titled
“Current Notifies,” which listed the Marathon County Sheriff’s Department and
noted under “Remarks”:“Outstanding
warrant for pending charges – marijuana.”

¶11We fail to see how the foregoing could possibly not demonstrate
“notification filed with the institution in which a prisoner is serving a
sentence, advising that he is wanted to face pending criminal charges in
another jurisdiction.”Indeed, we
recently referred to a nationwide arrest warrant interchangeably as a
detainer.See Tarrant, 772 N.W.2d
750, ¶3.

¶12Nonetheless, the State argues the nationwide arrest warrant
should not be considered a detainer because the prison learned of it
indirectly, and because the warrant is similar to a writ of habeas corpus ad
prosequendum, which was determined in Eesley not to constitute a
detainer.

¶13We reject the notion that how a prison first learns of a
warrant or pending charges has any bearing on whether a detainer has been
lodged.[8]What matters is whether a notification
satisfying the definition of a detainer is filed.Here, the sheriff’s department confirmed the
existence of the nationwide arrest warrant and pending charges, and then faxed copies
directly to the prison.

¶14We also reject the State’s argument that a nationwide arrest
warrant is similar in intent and effect to a writ of habeas corpus ad
prosequendum (writ).In Eesley,
225 Wis. 2d
at 253, the court was asked to determine whether the writ was a detainer for
purposes of the Interstate Act on Detainers.The Eesley court concluded it was not, contrasting the purposes and
effects of the writ and a detainer.The
court first observed that the writ “is issued by a court when it is necessary
to bring a person who is confined for some other offense before the issuing
court ....”Id. at 258 (citation and quotation
marks omitted).The court distinguished
that definition from the definition of a detainer set forth herein, which
focuses on providing notice that a person is wanted to face pending criminal
charges.Id. at 257-58.The court further observed that because writs
must be immediately executed, they are valid for only a short period of time.Id.
at 259.Detainers, on the other hand, could
be lodged against a prisoner for a very long time, often for the duration of
the prisoner’s sentence.Id.The nationwide arrest warrant in this case
has been recorded in Onheiber’s prison records for well over three years,
unlike the temporary writ of habeas corpus ad prosequendum.

¶15More importantly, Eesley focuses on the detrimental
effects of detainers, which are absent in the case of the temporary writ.Id.
at 259-62.The Interstate Agreement on
Detainers was intended primarily to prevent those detrimental effects.Id.
at 259; see alsoTarrant, 772 N.W.2d 750, ¶¶10-11,
18-19.Thus, in Eesley, the court
concluded the application of the Interstate Agreement on Detainers was not
needed to achieve the expeditious disposition of writs. Eesley, 225 Wis. 2d at 261.

¶16We set forth in Tarrant a number of detrimental
effects that the Interstate Agreement on Detainers was intended to prevent or
lessen:

The inmate is (1) deprived of an opportunity to obtain
a sentence to run concurrently with the sentence being served at the time the
detainer is filed; (2) classified as a maximum or close custody risk; (3)
ineligible for initial assignments to less than maximum security prisons (i.e.,
honor farms or forestry camp work); (4) ineligible for trustee status; (5) not
allowed to live in preferred living quarters such as dormitories; (6)
ineligible for study-release programs or work-release programs; (7) ineligible
to be transferred to preferred medium or minimum custody institutions within
the correctional system, which includes the removal of any possibility of
transfer to an institution more appropriate for youthful offenders; (8) not
entitled to preferred prison jobs which carry higher wages and entitle those
holding them to additional good time credits against their sentences; (9) inhibited
by the denial of possibility of parole or any commutation of his sentence;
[and] (10) caused anxiety and thus hindered in the overall rehabilitation
process since he cannot take maximum advantage of his institutional
opportunities.

¶17In his affidavit to the circuit court, Onheiber averred that
because of the detainer filed at the prison he:was denied a request for outside employment in the community service
program; was denied a request for transfer to the federal prison camp in
Oxford, Wisconsin, to be closer to his two children; lost his community
custody, which is the lowest level of custody and would have permitted him to
attend outside doctor appointments; was informed he might be transferred to
more secure custody; lost his eligibility for furlough; was told he might lose
eligibility for transfer to a halfway house under the “Second Chance Bill”;
and, as a result, had a diminished rehabilitative attitude.In his appellate brief, Onheiber further
asserts, without objection from the State, that other similarly situated
inmates are being given at least six-month halfway house allotments under the
Second Chance Act of 2007.[9]

¶18Additionally, in his motions to this court, Onheiber
represented he would be subject to being held more securely, “in the hole,” at
the end of his prison term because of the detainer; he has arranged for
employment following his release from prison, which would be inhibited by the
detainer; and, upon release from prison, or transfer to a halfway house should
he prevail in this appeal, he intends to seek immediate surgery at the VA
hospital in Madison, Wisconsin, for a documented, painful medical condition.[10]Had the Interstate Agreement on Detainers
been complied with in this case, any detrimental effects of the detainer on
Onheiber would have been diminished or absent.

¶19The State cannot file a detainer but then circumvent the
requirements of the Interstate Agreement on Detainers by simply informing
prison officials the State does not want the detainer to be called a
detainer.Such a result would be
farcical.Given that the facts of this
case fit precisely within the established definition of a detainer, and given
the State’s knowledge of the continuing and irreversible detrimental effects of
the detainer on Onheiber, the State’s position in this case is
unfortunate.The district attorney and
attorney general are:

the representative[s] not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore,
in a criminal prosecution is not that it shall win a case, but that justice
shall be done.

Nelson
v. State, 59 Wis. 2d 474, 483,
208 N.W.2d 410 (1973) (quoting Berger v. United States, 295 U.S. 78, 88
(1935)).Our supreme court further
recognized:“The office of prosecutor is an agency of the executive branch of
government which is charged with the duty
to see that the laws are faithfully executed and enforced in order to maintain
the rule of law.”Id.
(quoting ABA
Project on Standards for Criminal Justice, The Prosecution Function and The
Defense Function, § 1.1(a)).The State’s handling of this case does not promote the rule of law.

By the Court.—Order reversed and cause remanded with directions; arrest
warrant/detainer quashed.

[1] All
references to the Wisconsin Statutes are to the 2007-08 version unless
otherwise noted.

[3] Onheiber
was represented in the circuit court, but is now without counsel.

[4] The
prison was required by the Interstate Agreement on Detainers to forward Onheiber’s
notice and request to the court and district attorney’s office “by registered
or certified mail, return receipt requested.”Wis. Stat. § 976.05(3)(b).

[5] Onheiber
further moved to stay the arrest warrant/detainer pending resolution of his
appeal and further judicial review if necessary.That motion is mooted by this decision.

[6] The
federal government is considered a “state” for purposes of the Interstate
Agreement on Detainers.SeeWis.
Stat. § 976.05(2)(c).

[7]Wisconsin Stat. § 976.05(3)
required that the notice include the sentence details.

[8] The
record does not indicate how the prison learned of Onheiber’s arrest
warrant.However, because the prison
contacted the sheriff’s department just days after the warrant was issued, it
appears likely the warrant was entered into a nationwide clearinghouse, such as
the FBI’s National Crime Information Center (NCIC).If this is indeed the case, then the prison’s
notification was not so indirect or accidental as the State would have us
believe.Although we need not decide the
issue in light of the direct delivery of the warrant and complaint in this
case, a strong argument can be made that mere entry of a nationwide arrest
warrant into the NCIC or a similar national database is sufficient to
constitute the lodging of a detainer when a prison learns of the warrant by
accessing that database.

The NCIC is a computerized index of criminal justice
information available to law enforcement and other criminal justice agencies
that includes, among other things, a database of persons with outstanding
arrest warrants.FBINationalCrimeInformationCenter website, http://www.fas.org/irp/agency/doj/fbi/is/ncic.htm,
updated June 2, 2008.

[10] Onheiber
further asserts his repeated requests to the prison for medical attention were
ignored until recently and, thus, it was likely too late to receive necessary
treatment while in prison.Onheiber
included a copy of his June 5, 2009 MRI report with one of his motions.